We have seen so many new rules and procedures of dubious legality come down from Washington in the last seven years.
The Foundation for Individual Rights in Education (FIRE) is gearing up to challenge one of the most notorious–the Obama administration's sexual misconduct mandate. An item at FIRE's website announces:
Five years ago today, the Department of Education’s Office for Civil Rights (OCR) announced sweeping new requirements for colleges and universities adjudicating allegations of sexual misconduct. By unilaterally issuing these binding mandates via a controversial “Dear Colleague” letter (DCL), OCR ignored its obligation under federal law to notify the public of the proposed changes and solicit feedback.
To correct this error, and to begin to fix a broken system of campus sexual assault adjudication that regularly fails all involved, the Foundation for Individual Rights in Education (FIRE) seeks a student or institution to challenge OCR’s abuse of power. FIRE has made arrangements to secure legal counsel for a student or institution harmed by OCR’s mandates and in a position to challenge the agency’s violation of the Administrative Procedure Act (APA). In keeping with FIRE’s charitable mission to advance the public interest, representation will be provided at no cost to the harmed party.
“In the five years since its issuance, OCR has acted as though the 2011 Dear Colleague letter is binding law—but it isn’t,” said FIRE Executive Director Robert Shibley. “By circumventing federal law, OCR ignored all stakeholders: victims, the accused, civil liberties advocates, administrators, colleges, law enforcement, and the general public. Real people’s lives are being irreparably harmed as a result. It’s time that OCR be held accountable.”
The DCL erodes the right to due process of the accused–one of the cornerstones of western jurisprudence–by instead using a "preponderance of evidence" standard. So if fifty-one percent of the evidence points to guilt–the accused is guilty. The DCL also gave the universities incentive to find the accused guilty–too low a "conviction rate" could bring the feds in to investigate. While the DCL doesn't rule out going to the police–who are better qualified to investigate a rape allegation than university officials–it doesn't require it.
The university tribunals, with their low regard for due process, have not been doing a good job of providing justice:
“Scores of students—both alleged victims and accused students—have sued their institutions after suffering under the faulty systems that OCR has effectively crafted through the DCL,” said Susan Kruth, a FIRE senior program officer for legal and public advocacy. “Those who will be affected by new rules must be given the opportunity to comment on their development. That’s the best way to create a system through which campus sexual assault allegations will be effectively and fairly addressed.”
FIRE is seeking to force OCR to rescind the DCL’s mandates and then submit them to the public scrutiny required by law before attempting to reinstitute them. It has not done so voluntarily, and so FIRE seems to make them do so involuntarily.